Defiant passenger loses civil-rights case against San Jose police

By Tracey Kaplan tkaplan@mercurynews.com

Posted:
06/03/2014 07:07:54 AM PDT

Updated:
06/03/2014 07:08:31 AM PDT

SAN JOSE -- In a resounding victory for San Jose police, a judge has ruled that every action officers took during a controversial 2011 traffic stop was justified -- stopping a black BMW for playing loud music, arresting the passenger who mouthed off and initially refused to put his hands on the dashboard and zapping him with a stun gun.

The ruling Friday by Judge Beth McGowen comes after Air Force veteran Michael Fujikawa sued the city, claiming his only violation during the downtown traffic stop was of an unwritten rule barring "contempt of cop." His arrest shortly before the bars closed, Fujikawa contended during a six-day trial in Santa Clara County Superior Court, was merely payback for initially refusing to put his hands on the dashboard and mouthing off to Officer Steven Payne Jr.

Fujikawa spent five days in jail on what he claimed were inflated charges, including resisting arrest, battery and attempting to disarm an officer. Prosecutors immediately dropped the disarming allegation and, 11 months later, just before Fujikawa was to stand trial, dismissed the rest of the case.

But in the civil case against police, the judge strongly disagreed with Fujikawa's innocuous description of the incident and his claim that his civil rights were violated, calling his conduct "belligerent." Police had legitimate grounds to believe he was interfering with their investigation of the driver for playing loud music, she ruled, adding that Fujikawa admitted he was drunk and even apologized for his behavior afterward.

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Fujikawa has 10 days to respond to the ruling before it becomes final.

"Though Michael appeared in court and testified as a serious and responsible father of three, he presented differently in audio recordings" made after his arrest by police, the judge wrote. Police could have legitimately construed Fujikawa's tone, attitude and actions as resistance, she concluded, finding that "Payne reacted to more than speech alone."

The judge also ruled that the other officer named in the lawsuit, Daniel Pfeifer, did not lie in his police report when he said Fujikawa tried to take his Taser.

"Though it is surprising that none of the other officers at the scene saw an attempt to disarm," Fujikawa failed to prove by "clear and convincing evidence" that Pfeifer lied, she found. However, the standard of proof in civil trials is actually lower -- preponderance of the evidence -- not clear and convincing evidence, leaving it unclear if the judge simply misstated the rule or evaluated that aspect of the case on the wrong grounds.

City officials praised McGowen's ruling.

"It's the right result," said City Attorney Rick Doyle, who oversaw the case argued by lawyers Ardell Johnson and Richard North. "The officer was clearly just doing his job."

"This is a situation that never needed to go as far as it did," said Raj Jayadev, director of Silicon Valley DeBug, a community organization for young adults and a member of the Coalition for Justice and Accountability, an alliance of civil rights groups. "If police went in the direction of de-escalating rather escalating the situation, this wouldn't have happened."

The case awakened memories of a difficult era when public debate raged over San Jose police tactics and use of force.

Payne was the officer seen in a controversial 2009 video shocking an unarmed San Jose State student with his Taser. Although then-District Attorney Dolores Carr declined to charge him and other officers in that incident, the city settled the case with the student for $250,000. In addition, in a 10-week span in 2008, Payne used force in four separate incidents as he took people into custody for resisting arrest, an investigation by this newspaper revealed.

Michael Reiser, the lead lawyer for Fujikawa, tried to impeach Payne's credibility by drawing attention to a discrepancy between Payne's police report and GPS records kept by the department that show he was blocks away for a portion of the time on Feb. 12, 2011 -- and therefore could not have seen all the illegal behavior that he described.

But McGowen took scant notice of the GPS records in her ruling, noting that even Fujikawa and his brother, who was driving the car, disagreed on the exact route they took, and everyone involved testified during the trial to the best of their recollections about the routes driven more than three years earlier. However, Payne wrote his police report shortly after the incident when the route was likely to have been fresher in his mind.

The judge also noted that all the officers who testified in the trial called into question the accuracy of the department's GPS system, but she did not address testimony by a defense expert who said the discrepancy was too large to be accounted for by any typical glitch.